Part 20

If he wants to marry the second woman, he should divorce the first and wait until her ‘Iddah (waiting period) ends. If he marries the second during the ‘Iddah of the first, who is revocably divorced, such marriage will be invalid. This is

the opinion of the Four Imams. If divorce is irrevocable, the marriage will be invalid also, according to the opinion of Imam Abu Hanifah and Imam Ahmad, but will be considered valid according to the opinion of Imam Malik and Imam Al-Shafi’i. If the first woman is divorced once . or twice without compensation, such divorce will be considered revocable, thus marrying the second woman cannot be concluded until the completion of the ‘Iddah of the first woman, according to the agreement of the Four Imams.

As for the question whether he can marry the second woman, with whom he had intercourse by virtue of an unsound marriage in her ‘Iddah, there are two opinions concerning this:

Imam Abu Hanifah and Imam Al-Shafi’i are of the opinion that such marriage will be valid. The second opinion, which is attributed to Imam Malik and Ahmad in one of his two narrations is that such marriage is invalid.

Marrying the mother of one’s wife with whom marriage is not consummated

Q: A man married a woman a year ago, then divorced her before the consummation of marriage. Can he then marry the mother of his divorcee?

A: No, it is not permissible to marry the mother of his divorcee, even if he did not consummate marriage with her.

12 moths without menstruation!

Q: A man divorced his wife who suckles her baby. Eight months lasted after her divorce, then she married another man who lived with her for a month, then divorced her. She remained for three monthafter divorce. Throughout that period (i.e. 12 months) she did not have her menses. She then married the first husband again, who is the father of her baby. Are these two marriages valid, or just one of them?

A: Neither the first nor the second marriage is valid. She should rather complete the waiting period of the first divorce, then wait until the completion of the ‘Iddah following the second divorce, then marry whomever she wants of either of the them.

Q: Three years ago a man married a woman who gave birth to a son of 2 years old now. She later claimed that she married that husband following an ‘Iddah that lasted for two menstruations only and the husband confirmed her

claim. The husband then divorced her. What is the judgment of that divorce?

A: If the husband confirmed her claim that he married her following two menstruations of her ‘Iddah (which should be three) such marriage will be invalid. The husband has to separate with her. She should then complete the “Iddah for the first divorce, then observe the ‘Iddah because of intercourse she had with the second husband, If she had the third menstruation before the second husband had intercourse with her, thus ‘Iddah of the first divorce will be completed.

If the second husband divorces her, she should observe ‘Iddah for three menstruations. After this she can marry anew with whomever she wants. The son she had from the second husband will be regarded as legitimate and will be attributed to him, even though he was born as a result of an unsound contract of marriage, whose unsoundness was first unknown.

A virgin woman who is divorced thrice

Q: A man married a virgin woman then divorced her thrice without consummating marriage. Can he marry her again with a new contract of marriage?

A: A woman who is divorced thrice, with whom marriage is not consummated shall be treated the same as that with

whom marriage is consummated. This is the opinion of the majority of scholars.

The marriage of a woman whose guardian is a fasiq [oft-sinner]

Q: A man married a woman whose guardian was a fasiq, who _ was given to earn ill-gotten money and drink alcohol. The witnesses who attended the marriage contract were like him. Can the husband return his wife after divorcing her thrice, on the grounds that the contract was not sound (due to the fact that both the guardian and witnesses are

A: if the husband divorces her thrice, his divorce will be countable. Trying to return the wife on the grounds that the contract of marriage was not sound is a_ kind of man.pulating to transgress the limits set by Allah twice: once before the divorce and once after it. The judgment of the divorce of the unsound marriage is disagreed upon by Imam Malik and other scholars. The marriage contract concluded by a fasiq guardian is valid, according to the opinion of the majority of scholars.

CONDITIONS OF MARRIAGE Fulfilling the conditions of marriage

Q: A man married a woman on the conditions that he must not marry another woman with her, or move her to another house and to keep the daughter of his wife live with her. Is he obliged to meet such conditions after the consummation of marriage? If he does not fulfill these conditions, does the wife have the right to annul marriage?

A: According to Imam Ahmad and a group of Companions and Successors, such as ‘Umar bin Al-Khattab, ‘Amr bin Al-‘As, Shuraih the Judge, and Al-Auza’i, such kinds of conditions should be fulfilled. According to Imam Malik, if it is conditioned that if the husband marries another woman or takes a concubine, the wife will have the option either to stay with him or to separate with him, such condition will be valid. In the Two Sahihs it is narrated that the Prophet (peace be upon him) said: “The conditions that you should be very keen to fulfill are those made in marriage contracts (with which women are made lawful to you.)”

As for the condition that the daughter of the wife should live with her in the house of the husband, and his being required to afford for her, this is considered a condition of stipulating an increase of the amount of dower, which may not be well-defined. Anything undefined stipulated in marriage contract that may reach an amount equal to the dower paid to the peers of the wife or less, is permissible. However, the matter can be decided by referring to the custom and surrounding circumstances.

Should the husband not fulfil the conditions he accepted, thus marries another woman or takes a concubine, the wife will be able to annul marriage contract.

Again a question was raised concerning the execution of the annulment of marriage: is it necessary to refer to the executive authority to carry it out or not? The preferred opinion is that is not necessary to do that. However. if reference is made to an executive authority, such authority will be entitled either to acknowledge the annulment of marriage or to cancel it.

PHYSICAL DEFECTS VERSUS MARRIAGE Can leprosy cause the annulment of marriage?

Q: A woman married to a man, and after the consummation of marriage found out that he is a leper. Is this a valid reason to annul marriage?

A: If either of the spouse is found to be physically defective, such as in the case of insanity or leprosy, the other will have the option to annul marriage. However. if the party who found out the defect in the other accepts it. no annulment is applicable in this case. If the wife annuls the marriage, knowing the defect and accepting it, she will not be entitled to take any of her trousseau. If annulment is made before the consummation of marriage, she will not be entitled to her dower. However, if it is made after the

consummation of marriage, she will be entitled to the dower.

The Mustahadah [a woman suffering from continuous vaginal bleeding]

Q: A man married a virgin woman and found out that she was suffering from continuous vaginal bleeding. The family of the wife did not tell him of that defect. Can he annul the marriage and demand the amount of dower he paid from the family of the wife? Should the father and mother of the wife be made to take oaths in case they deny. Can the husband have intercourse with this wife or not?

A: According to the preferred opinion, this defect may cause the annulment of marriage for two reasons:

II. This defect makes intercourse most likely harmful. Ze Intercourse with a woman suffering froma

continual vaginal bleeding is not permissible except for a necessity, according to the famous opinion of Imam Ahmad. All that prevent intercourse physically like the blockage of vagina, or mentally like insanity incurs the annulment of marriage according to Imam Malik and Imam Al-Shafi’i. It was also reported after ‘Umar bin ALKhattab. As for complete prevention from intercourse. such as the case of the presence of impurity in the vagina, it is considerably disagreed upon among scholars. The case

of the woman who suffers from continuous vaginal bleeding, is severer than other similar cases.

If the husband annuls marriage before the consummation of marriage, he will not be required to pay the dower. If he annuls marriage after consummation, it is said that dower is payable by virtue of such case of privacy with the wife. If he had intercourse with her, he should demand the amount of dower from the party who deceived him. It is said also that the dower will not be payable by virtue of the privacy. Rather, the husband has the right to let the party who deceived him make an oath to the contrary of his claim.

Intercourse with a Mustahadah is considerably disagreed upon by scholars. In an opinion attributed to AlShafi’i and others, it was said that it is permissible to have intercourse with the Mustahadah. According to another opinion, having intercourse with a Mustahadah is not permissible except for a necessity. If the husband has intercourse with her after that, it will be counted as an acceptance on his part and will not be opted to annul marriage, if he claims his being ignorant of that, this case is disagreed upon among scholars: whether he has the option to annul marriage or not. Th preferred opinion, however, is that he has the option to do so.

A woman found to be virgin

Q: A man married a woman, knowing that she was virgin, then found out later that she was not. Can he annul marriage? Can he demand the dower he paid from the party who deceived him?

A: The husband in this case is entitled to annul marriage. Should he wants to consummate marriage, he will be entitled to demand a reduction of the mount of dower to equal the customary dower paid to a previously married woman. If he annuls marriage before consummation, he will not be required to pay a dower.